FALL 2007

Computer Law

 
Course No.  9200 711 001
Th 6:30 - 9:30 p.m.
Room W-214
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
dratler@uakron.edu, dratler@neo.rr.com
Copyright © 2000, 2001, 2002, 2004, 2007   Jay Dratler, Jr.   For permission, see CMI.
 

Computer Law, Fall 2007

FINAL EXAMINATION

Instructions

1.  E-mail at-home examination.  This is an e-mail, at-home examination.  Subject to the limitations stated below, you are free to take it at any time and place of your choosing.

2.  Limitations.  Your completion of this examination is subject to the following limitations:
3.  Materials.  Because this is an at-home exam, you may use any written materials that you have on hand, provided they are: (1) published or (2) prepared by you.  You may also use your computer to browse the Web, including the material posted for this course on the Law School’s Website.  However, the questions have been designed so that the following materials should be sufficient: (1) the casebook (if any), supplement (if any), and Website for this class (including any materials from it that you have downloaded, printed out and annotated), (2) any statutory supplement that you have used for this class (including your own, but no one else’s, annotations); and (3) an outline that you have prepared.  I encourage you to make your outline short, both so it will be usable and so you will have an “overview” of the course.

4.  Strategy for Answering the Questions.  
5.  Call of the Question.  BE SURE TO READ THE CALL OF EACH QUESTION CAREFULLY AND TO ANSWER ONLY THE QUESTION(S) ASKED.

6.  Submitting your Answers.  Detailed instructions for submitting your answers appear at the end of the examination.  Please follow them carefully.

Good luck!

Question 1
(Ninety Minutes)

A

Pam and Paul are old friends with master’s degrees in computer science from the Massachusetts Institute of Technology (MIT).   Each is a highly skilled computer programmer.   They work in the Information Technology (IT) departments of separate financial institutions.

While their work is highly paid, they consider it boring and pedestrian.   So a few months ago they began to work together secretly, after office hours, to “do something interesting.”  Although they live in different cities, both have sophisticated computer systems at home, which allow them to communicate over broadband Internet connections, in real time and with full-motion video.

Pam and Paul soon settle on a worthy project: trying to develop a useful method of indexing short audiovisual clips available from various sources on the Web, which generally last five or ten minutes at the most.   They agree that text titles, which can be too narrow or misleading, are not the best way to index audiovisual clips.   Instead, they think that every clip contains a single image, i.e., a single frame, that remains in the minds of people who have seen it and serves as a mental “entry point” to remember and index the clip.   Together, they set out to program means to identify and extract the unique “index image” of every audiovisual clip.


B

The two programmers try different methods to reach their goal.   Pam works on analyzing the data in the audiovisual stream for each clip.   She thinks that she can devise computer algorithms to analyze images in the many separate frames of an audiovisual work and determine from visual data alone which image is the most “important.”  After testing dozens of algorithms, see finds one that she likes and writes a robust computer program to implement it.   When given the URL (Web address) of an audiovisual clip available on the Internet, Pam’s program extracts a single frame from the clip as a visual index image, without sound, and presents it for viewing.   Pam calls her program “Index Image Select.”

Paul takes an entirely different tack.   He believes that nothing can match the human mind in analyzing audiovisual input.   So he seeks to “track” users’ on-line reactions to audiovisual clips as they play them on their home and office computers.   After months of programming and experimentation, Paul develops a unique program that can catch streaming transmissions of video clips over the Internet, “on the fly,” and monitor what users do with them.

Paul’s program works like this.  When given the URL of a particular source of audiovisual material (such as a particular clip on a streaming Website), the program monitors every transmission of that clip from its source server to any user.   By determining the receiving user’s Internet protocol address (IP address), the program can monitor the user’s first viewing of the clip (i. e., streaming of it) and monitor exactly what the user does.   If the user stops on or repeats (plays again) a particular portion of the clip, the program selects an image from that portion to index.   By monitoring actual use of the same clip by millions of users, the program selects what users collectively, through their first viewing of the clip, seem to feel is the most important index image.   Paul calls his program “Image Importance Monitor.”

In order to accomplish its goal, Paul’s program has to have access to data that is usually private.   These data include the IP addresses of users as they access audiovisual clips over the Web and users’ “experience” in playing (streaming) the clips on their own personal computers.   In order to gain access to these data, Paul’s program exploits certain security vulnerabilities in the Internet’s own software protocols and in various commercial “plug-in” audiovisual software (such as Flash Player, Real Player and Windows Media Player) that Internet users employ to play audiovisual clips on their PCs.

In finding and exploiting these security vulnerabilities, Paul is a genius.   None of these vulnerabilities is known in the industry, and no one but academics working in obscure institutions are even aware that vulnerabilities of this sort exist.

Paul’s Image Importance Monitor doesn’t extract or keep any identifying information about the anonymous viewers whose on-line behavior it monitors.  All it stores is the index image, if any, that it extracts by analyzing the user’s pauses, rewinds and repeats in his or her first private streaming of a clip.   It doesn’t determine or record whether the user downloads or stores the clip or, if so, what happens on a user’s subsequent viewing of any downloaded clip.   Nor does it store any user’s IP address.   All it does is extract an index image, if possible, from each user’s first viewing experience and put that image into a database for the particular clip.   Only after the program monitors a large number of first viewings of a particular clip can it hope to select an index image (i.e., a particular frame in the clip, without sound) that represents the best index image, based on viewers’ collective choice.


C

After polishing and testing their two programs separately, Pam and Paul each set up means for the other to test the programs through remote use on her or his computer, respectively.   Each is impressed with the other’s work, but each finds problems in selecting a desired index image.   After testing Pam’s Index Image Select program on hundreds of clips, Paul finds that it sometimes chooses a bizarre image that no human being would consider even remotely representative of the clip as a whole.   While testing Paul’s Image Importance Monitor, Pam discovers that it doesn’t work well until it has monitored at least several thousand first streamings of a single clip by consumers, which often takes several weeks.

After consultation, the two programmers determine that their products work much better together than separately.   So they cooperate in combining the two programs into a single program called “Index Imager.”  The combined program works by relying upon Pam’s Index Image Select until Paul’s Image Importance Monitor has build up a significant database of consumer’s “choices” for a particular clip.   Their algorithm, however, blends the selection made by each program seamlessly in a complex, nonlinear manner.  The result is a product of their combined programming genius, which pleases both Pam and Paul.   They are so pleased with their work that they swear each other to secrecy and decide to market their work to the industry.


D

Goggle is the nation’s premium on-line search firm, with a 67% share of the market for on-line searches using textual search requests.   Unless something unforeseen changes, industry analysts expect Goggle to dominate that market for the foreseeable future.  Goggle buys Pam’s and Paul’s programs for a large sum in cash and an even larger amount of Goggle stock.   Pam and Paul both quit their boring banking IT jobs and go to work for Goggle.

Before beginning work for Goggle, Pam and Paul sign Goggle’s standard programmer’s employment agreement, which contains a nondisclosure covenant and transfers all right, title and interest in their programs to Goggle.   Goggle, which now owns the copyright and all other rights in their programs, registers the copyrights in it own name.

In signing Goggle’s standard employment agreement, Pam forgot all about her e-mail correspondence with Don, who was a close friend at MIT but drifted away after graduation.   Shortly after completing and testing her Index Image Select program, Pam had received an e-mail message from Don asking how she was doing.   So proud was Pam of her work that she sent Don a copy of the source code for Index Image Select in her reply.   That code reveals all of her algorithms to any trained programmer.  In sending the code, Pam wrote Don, “You can play with this code and have fun on your own, but please don’t show it to anyone else.   I might consider selling it if it works well.”

At the time, Pam wasn’t too worried.   She had written Index Image Select for the Windows operating system, and she knew that Don was a Linux and “free-software” fanatic.   As Don mentioned in his e-mail, virtually everything Don had done in programming involved Linux-based software distributed under the General Public License (GPL) as “free software.”  At the end of their brief e-mail correspondence, Don told Pam that he was going to take a job with the Free Software Foundation.


E

Goggle is about to embark on a major business initiative relating to indexing and searching for audiovisual clips.   That initiative will be one of a handful of core projects by which Goggle seeks to expand its business from text searching on the Internet to rapid and efficient searching of audiovisual material.

To reach its goal, Goggle’s management intends to use Pam’s and Paul’s Index Imager as the exclusive index image selector for all of the clips on MeTube, the leading on-line audiovisual clip service, which Goggle recently acquired.  MeTube has a 55% share of the market for streaming video on the Web, and Goggle hopes to increase that share substantially.  Some of its clips are developed and uploaded by users, and some are provided by Goggle's advertisers or by Goggle itself.  Goggle intends to offer a video search engine for all the clips on MeTube, using a reduced-resolution “thumbnail” version of the index image selected by Index Imager for each clip.  That is, Goggle intends to use Index Imager to select a single frame, without sound, for each clip, then reduce that image to a "thumbnail" to be posted as an "entry point" for that clip on all of Goggle's index pages and search engines.

In order to provide an industry-wide standard for audiovisual clip indexing, Google also intends to encourage the rest of the industry to use Index Imager.   It plans to discourage the development of competing systems of on-line audiovisual-clip indexing by requiring independent firms that try to index clips from the servers of MeTube to use Index Imager as the exclusive and only means of selecting images for visual indexing.   Google intends to enforce this requirement by suing any firm that uses another indexing system for copyright infringement, claiming that any other thumbnail image used for indexing is an infringement of copyright in the underlying MeTube clip.


F

You are Goggle’s general counsel, and you are aware of all the foregoing facts.   Goggle’s management has asked you for a comprehensive analysis of its plans and prospects from a legal perspective.   Please write a memo advising Google on the following points: Do not discuss the merits of Google’s proposed copyright litigation with respect to the thumbnail images (subsection H, last paragraph).

Question 2
(Sixty Minutes)

A

MyFace is a social-networking website, on which mostly young people post diaries, photo albums, résumés, videos, and narratives about their lives, loves and ambitions.   It is highly popular with teenagers and college students.

When MyFace first appeared on line, all of its pages—including pages posted by users—were available to the entire world, without restriction.   That policy produced a number of unfortunate incidents, including abusive on-line relationships, unhealthy and vengeful on-line exchanges, misuse of personal on-line material by prospective employers, insurers and landlords, and even stalking and other crime in the “real” world, which got its start in the on-line world.

To reduce these problems, MyFace modified its on-line technology to allow every user (i.e., every person posting material on MyFace’s website) to restrict access to material posted by that user.   There are three means of restricting access, all under the user’s control: (1) restrictions that require the user’s own password for access; (2) restriction of particular pages posted by the user to persons having passwords assigned by the user (with a separate password possible for each page); and (3) restrictions to particular other users based on a list of other users’ names provided by the user imposing the restriction.

Delia is a free-spirited, outgoing high-school girl with extraordinary computer programming skills.   She dislikes shy people.   From her high-school “grapevine” and her own browsing on MyFace’s website, she learns that several of her shy high-school classmates have posted intimate personal revelations on their MyFace web pages but have limited access to those revelations by means of restrictions (2) and (3).  Delia has heard that these revelations include material on her classmates’ amorous relationships and their personal struggles with depression and drugs.

Using her programming skills, Delia hacks through MyFace’s security and gains access to these classmates’ MyFace web pages.   She then copies all of the “juiciest” revelations to a publicly-available set of Web MyFace pages. She sets up these pages on MyFace using an anonymous screen name, but the pages identify each subject by name, address and school.   As a result, all the most private posted material of her “shy” classmates is now available to the world, complete with personal identification.  Assuming that Delia is liable as an adult, analyze her exposure under the Computer Fraud and Abuse Act and the Electronic Communications Privacy Act.  Discuss briefly any other legal liability she might have.


B

You are the prosecutor for Summit County.   You have been assigned to investigate and prosecute a series of five bizarre murders in the county.   All the victims were members of an immigrant ethnic group sometimes suspected of terrorism.   All were shot through the head, execution style, with a single shot at medium range.   At present there are no suspects.

In four cases the fatal bullet was never found.   But in one case the bullet was found embedded high in a nearby tree.   Ballistics tests indicate that it was fired from no known commercial or military weapon, suggesting that the weapon that fired it was custom made.

Upon inquiry, you find that the federal Bureau of Alcohol, Tobacco and Firearms (ATF) has a computer database going back three decades, which covers all incidents of suspected use of nonstandard and custom-made weapons.   The database is classified Top Secret, both because it has been used in thwarting terrorist attacks and for fear of alarming the public.   The database contains information about the machines, firms and people suspected of involvement in manufacturing custom-made weapons.

Officials in charge of the ATF database agree to consult with you if you sign a secrecy agreement and comply with all their orders regarding the database.   You sign it.   Upon consultation, you learn that the database contains information that might allow you to identify the machines and firms, and possibly even the people, that manufactured the custom-made weapon used in your case.   So far, this is the only lead that you have in solving the five murders.

Your ATF sources say that no ATF official has ever testified about the existence or contents of the database and that the ATF would resist any subpoena on national-security ground.   Occasionally, however, active or retired ATF officials have testified as private experts on evidence obtained from the database connecting particular bullets to particular machines or firms that may have manufactured custom-made weapons.   Their testimony has been strictly limited to avoid disclosing the existence or contents of the database.

Assume that a court, on the ground of national security, would quash any subpoena directed to the ATF or its active or retired staff that violated the ATF’s classification regime.   In other words, assume that you have to operate within the AFT’s rules and customs.   Analyze the practical and legal problems that you would expect to encounter in prosecuting a suspect in the killings, and decide whether you should proceed with the investigation.


Question 3
(Thirty Minutes)


Write an essay analyzing and/or criticizing this passage.  Be sure to address all aspects of it, including: (1) its underlying assumptions (including the law’s past, present, and likely future effect on Internet use); and (2) its implicit judgments as to what is good policy and what is practically doable.  If you agree that parts of the law require revision, specify briefly, as specifically as possible, what aspects of it require revision and why.  Your grade will depend not upon your point of view (or upon whether your agree with the passage), but upon how carefully and specifically you support and document your analysis, with reference to the statutes, cases and statutory and constitutional policies that we have studied and the underlying factual trends that they reveal.  The more specific and focused your analysis, the better your grade will be.

END OF EXAMINATION
INSTRUCTIONS FOR SUBMITTING YOUR ANSWERS APPEAR BELOW



INSTRUCTIONS FOR SUBMITTING YOUR ANSWERS

Please take all of the following steps in submitting your answers, before the deadline for submission:

1.  Include honor-code statement.  Make sure that your honor-code statement appears at the end of your answer file.  (Your examination number and e-mail header will constitute your signature under Ohio’s Uniform Electronic Transactions Act.)

2.  Include your examination ID number.  Type your examination ID number at the end of your answer file and double-check it.  To avoid accidental breach of anonymity, make sure that your answer file contains no other identifying information.

3.  Spell-check and finalize.  Spell-check your answer file and make any necessary changes.  Check the total number of words and modify as necessary.

4.  Save your answer file with the anonymous ID.  Save your answer file on your hard drive, with your honor-code statement and examination ID number at the end of the file.  When you save your file, use the file name “2007 Computer Law Exam” and no other.  (If you use another file name, your anonymity may be compromised.)

5.  Save your file in a commonly used, compatible format.  Some word-processing formats have compatibility problems.  If you have experienced problems exchanging files with others in the past, please use a file format that you know is common and widely compatible.  If necessary, save your answer file in Rich Text Format.  (Use the “Save As” feature of your Word Processor; then click on the double arrow to the right of the “File Type” field in the “Save As” dialogue box and select “Rich Text Format (RTF)” or another widely compatible option.  Be sure to verify that this option appears in the “File Type” field before you click the “Save” button.  Then check to see that a file with correct name and a “.doc” or “.rtf” file extension appears in your file folder.  You may have to click on “View” : “Details” to see the file extension.)

6.  Attach your answer file to an e-mail message.  Send your answer file, in a compatible format, as an e-mail attachment to your message, not as part of the message itself.  The “Subject” line for your e-mail message should be “2007 Computer Law Exam,” and the text of the message should read “Attached are my answers.”  Please double-check that your answers appear as an attached file, not embedded in your e-mail message.

(I will use your e-mail cover messages only to check that everyone has submitted answers.  I will not grade any exam until an assistant has “anonymized” the answers by separating the attached files from the e-mail messages and sending the attachments to me with no identifying information other than the examination ID number included in each file at the end.)

7.  Submit your answers by e-mail.  Send your cover message, with your answer file attached, to all of the following addresses:

(If you have not already prepared an address list in response to the test message, please cut and paste each address from this list into your e-mail program’s “address” or “TO” field to avoid tying errors; then double-check all addresses and punctuation.)

8.  Print and retain a paper copy of your answer file.  Immediately after sending your e-mail message, print out a copy of your answers and staple the pages together.  Then sign and date your answers and record the exact time of your printout on the title page.  (If there is an e-mail mixup, this paper copy will serve to demonstrate what you wrote and when, in accordance with the honor system.)
HAVE A GOOD WINTER BREAK!